What Do We Know About Best Practices in Mediation?

From my dear colleague and Friend of Indisputably, Nancy Welsh:

Dear Colleagues,

I am posting this in my role as Chair of the Dispute Resolution Research Advisory Committee of the ABA Section of Dispute Resolution (“Advisory Committee”).

In 2017, the Section’s Task Force on Research on Mediator Techniques issued a comprehensive report analyzing research that has been done to determine best practices in mediation. The entire report is available and I am happy to email it if you would like to read it. You can also read about its findings in the short article and blog post that I can also send. Because time is precious, though, this post  will provide you with an extremely short list of key takeaways – and the Advisory Committee hopes you will incorporate them into your scholarship, teaching and training:

  • We desperately need more current research regarding mediation, and we need enough research focused on particular case types. Nearly two thirds of the research studied by the Task Force took place prior to 2000 – almost a generation ago – and much has changed since then. In addition, these studies involved a variety of contexts and used different language and variables, making it impossible to say anything with absolute certainty.
  • Therefore, anyone currently claiming that his or her mediation approach is clearly supported by “the research” as being “best practice” is over-claiming.
  • At this point, we can say only that there are certain mediator behaviors that appear more likely than not to be beneficial. According to the Task Force, the following behaviors seem to have a greater potential for positive effects than negative effects on settlement as well as disputants’ relationships and perceptions of mediation:
      • Eliciting disputants’ suggestions or solutions.
      • Giving more attention to disputants’ emotions, relationship, and sources of conflict.
      • Working to build trust and rapport, expressing empathy or praising the disputants, and structuring the agenda.
      • Using pre-mediation caucuses focused on establishing trust.
  • And, according to the Task Force, we can only say that there are certain mediator behaviors that seem more likely to negatively affect disputants’ relationships and their perceptions of the mediation process:
      • Mediators’ pressing or directive actions have the potential to increase settlement sometimes but virtually all studies found mediator pressure on or criticism of disputants either had no effect or had negative effects on disputants’ relationships and perceptions of mediation.
      • Caucusing during mediation either has no effect or a negative effect on disputants’ relationships, their perceptions of the mediation process, and post-mediation conflict, although it may have a positive effect on attorneys’ perceptions of the process.
  • The studies support caucusing’s ability to increase settlement only in the labor-management context. There was no evidence that caucusing increased settlement in the other contexts studied – i.e., construction, small claims, child custody, and employment. Importantly, however, there were no studies examining the settlement-related effects of caucusing in contexts such as large commercial, civil rights (outside employment) and personal injury.
  • We need to identify funding to jumpstart research regarding current practice. (The funding does not need to be huge–even $3,000 would be enough to fund useful research by an advanced graduate student – who then might make our field part of his or her life’s work.)

We have strongly urged members of the Section of Dispute Resolution’s leadership to incorporate the Task Force’s report and findings into any educational programming they conduct for the Section. We urge you to do the same in your scholarship, teaching and training. We also would be very happy to learn your thoughts regarding opportunities and resources for future research on mediation and dispute resolution more generally.

The other members of the Dispute Resolution Research Advisory Committee are: Lin Adrian, Howard Herman, Jennifer Shack, Donna Shestowsky, Donna Stienstra, Tom Stipanowich, and Doug Van Epps. We will be at the Section’s spring conference and welcome talking with you!


Nancy A. Welsh
Professor of Law and Director, Dispute Resolution Program Texas A&M University School of Law

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